Catch and Release

One last note from Pakistan for now. After Mumbai, there is much skepticism in India and in sections of the American government about whether Pakistan will truly crack down on Kashmir-focussed terrorist groups such as Lashkar e Taiba and Jaish-i-Mohammed and their leaders, or whether, as in the past, the Army and its intelligence arm, Inter-Services Intelligence or I.S.I., will undertake a series of temporary detentions and light prosecutions, only to release those detained after a few months. This historical pattern is now referred to sardonically in India as a “catch and release” approach to terrorism. So it was striking to see that phrase used as the headline on a very sharp piece of investigative reporting in the Herald, one of Pakistan’s leading news magazines.

The writer, Massoud Ansari, opens his account with the case of Khalid Fauji, an aide to Amjad Farooqi, who organized two assassination attempts against former President Pervez Musharraf in late 2003, and who has also been accused of involvement in the kidnapping and murder of Daniel Pearl. Ansari reports:

Fauji…was picked up in 2004 when the police and the intelligence agencies launched a joint operation to capture Farooqi from Nawabshah, which ended in the latter’s death. Fauji, the Herald has learnt, was kept in a safe house and interrogated without being charged for nearly one year after being captured. On October 8, 2005, Tariq Jamil, then city police chief of Karachi announced his arrest in a press conference, claiming that the militant had just been picked up from a hotel.

This is typical I.S.I. tradecraft, unfortunately—hold a suspect in secret for a prolonged period, then dump him into the Pakistani court system as if the suspect had just been identified. Here is the Pakistani version of America’s secret-prisons problem. The Army and I.S.I. run their ambiguous campaigns against militants entirely out of sight, and with no judicial accountability. At the same time the country supports a parallel, open policing and judicial system with judges and lawyers who, while too often corrupt and venal, nonetheless value their independence. During the last several years, the independence of the judicial system has become a national cause championed by a lawyers’ movement. When I.S.I. does decide to dump a terrorist into the open-court system, the evidence it can offer of the suspect’s confessions is not likely to withstand the scrutiny of the country’s British-inspired, liberal-minded or at least defiant and ornery lawyers and judges.

In this case, Ansari continues,

All that Fauji was eventually charged with was possession of arms and explosives…He was tried but released within two years: none of the charges were proved since the weak evidence against him did not meet the standards of the higher courts. Fauji, however, is not an isolated case. In fact, several militants who had been arrested for their alleged implication in high-profile terrorist acts across the country have been released. A list prepared by the Crime Investigation Department (CID) reveals that from Sindh alone nearly 121 high-profile terrorists were released from 2002 to 2007. In each case, the prosecution’s case was not strong enough. According to the list, those released include 40 men from Sipah-e-Sahabah [a vicious anti-Shia group with ties to Al Qaeda], 19 from Lashkar-e-Jhangvi, 21 from Harkatul Mujaheddin, 15 from Jaish-e-Mohammed…and one Taliban….Many of these militants have fallen off the radar of security agencies.

Ansari’s reporting describes an essential source of failure in Pakistan’s counterterrorism and counterinsurgency campaigns: even where there is the will, there is often not a way.

Pakistan’s capacity to break this pattern will be tested in the Mumbai case. I.S.I. is now holding and interrogating several suspects in the attack who will likely be prosecuted under Pakistani law, sooner rather than later, as a centerpiece of Pakistan’s efforts to convince India and the United States that it is taking serious action against those responsible for the deaths of Indian and American citizens in that raid. Once these indictments reach Pakistani courts, they will surely be tested and scrutinized by defense lawyers whose ranks today are in a broad state of politicized opposition to the Pakistani security establishment. This scrutiny will unfold, too, in a general atmosphere of deep anti-Americanism in Pakistan, and no particular mood of love for India; any Mumbai prosecution will be seen in some quarters here as a product of Indian and American coercion.

To seek justice for the Americans killed in Mumbai, the F.B.I. and the Justice Department will almost certainly come forward with indictments in U.S. federal court, so that the U.S. government can pursue the Mumbai shooters and organizers if Pakistan’s court system catches and releases once again.

Steve Coll, a staff writer, is the dean of the Graduate School of Journalism at Columbia University, and reports on issues of intelligence and national security in the United States and abroad. He is the author of “Private Empire: ExxonMobil and American Power.”